Action brought under section 50 of the Practice Act, ch. 94.

Mr. Sedgewick opens.-A bill of lading marked W.F.D'B.,1, is put in. It is admitted that on the 12th June, 1875, the plaintiff's shipped on board of defendants' vessel the goods mentioned in the bill of lading produced, which bill of lading plaintiffs received from defendants' agent; that the plaintiffs were the owners of the goods, and the defendants were the owners of the steamer, and common carriers; that defendants have an agent at Halifax in connection with their business as common carriers; that defendants did not deliver the goods at Halifax, but landed them at Pictou two or three days after they ought to have been delivered at Halifax, the port of delivery; that, in consequence, some of the goods being perishable became useless, and that the value of the goods rendered worthless is $41.15, for which sum damages are to be assessed if the plaintiffs are entitled to recover. It is also admitted that the plaintiffs as well as the defendants reside in the United States.

Notice of writ marked W. F. D'B., 2, is put in.

The plaintiffs rest.

Atty.-General, for defendants.-It is admitted by plaintiffs counsel that Loughead & Kent, residing at Truro, N. S., ordered the goods from the plaintiffs, who shipped them, and that after the shipment of the goods and before this action was brought Loughead & Kent paid the plaintiffs for them.

Defendants rest.

Non-suit.

A rule was granted to set aside non-suit and to enter a verdict for plaintiffs for $41.15.

W. F. DESB.

This decision was questioned at the argument during the present,term upon the rule nisi for new trial on the ground that, the contract having been made with the carrier by the plaintiff, he alone could sue on it, the defendants' counsel

contending that the right of action both on the contract and in trover was, upon the evidence, vested in the consignee only. This is the ordinary case of a vendor shipping goods to a party by whom they had been ordered and taking a bill of lading to deliver them to the consignee or his assigns, he or they paying freight.

The question as to who,-the consignor or consignee,-is entitled to maintain the action, was discussed and developed in a number of cases prior to 1849, several of which were cited at the argument. These cases, when examined, are entirely consistent with each other, and the most important of them were collated in the opinion of Lord COTTENHAM, in the case of Dunlop v. Lambert et al., 6 Clarke & Finnelly's House of Lords Cases, 623. His Lordship, after reviewing the cases, said; "These authorities, therefore, establish in my mind the propositions which are necessary to be adopted in order to overrule this direction of the Lord President. I am of opinion that, although generally speaking where there is delivery to a carrier to deliver to a consignee, he is the proper person to bring the action" (it was an action on the contract)"against the carrier should the goods be lost, yet that if the consignor made a special contract with the carrier, and the carrier agreed to take the goods from him and deliver them to any particular person at any particular place, the special contract supersedes the necessity of showing the ownership in the goods; and that, by the authority of Davis v. James and Joseph v. Kemp, the consignor, the person making the contract with the carrier, may maintain the action, though the goods may be the goods of the consignee." This case seems to have settled the law, as there are but few decisions since.

Without specifying the several cases in which it has been held that the consignor could sue, I may remark that they were all cases in which the consignor expressly or implicitly reserved some right,-something which was inconsistent with the full right of property and possession being in the consignee. In one case the Court went so far as to decide that, because by the contract the consignor was to pay the freight, the action could be brought in his name. But in this case there was no special contract. The consignor has done everything in his power to divest himself of all right, obligation or privilege

with respect to the goods, except that which the law reserves to him, the right of stoppage in transitu in case of the insolvency of the consignee. It is true that he procured the bill of lading and shipped the goods, but all that he did in this respect was as the agent of the consignee. See Freeman v. Birch, 1 N. & M., 420.

The case of Thompson et al. v. Dominy et al., 14 M. & W.,403, which was decided some years after Dunlop v. Lambert, was cited at the argument by counsel for plaintiff, but that was the case of an assignment of the bill of lading, and it was held that the assignment of a bill of lading, although it passes the property and confers the right of sueing in tort for non-delivery of goods, does not transfer the contract. This was upon the familiar principle that, by the common law choses in action are not assignable. In ordinary cases such as the present the contract is made with the consignee himself through the consignor as his agent, and, therefore, there is no assignment, and the principle does not apply.

I am of opinion that the rule nisi should be discharged with costs.

WEATHERBE, J.-I am unable to see that this case, under the facts admitted, where the delivery was to the carrier by the consignor who had sold the goods to the consignee, to whom by the terms of the bill of lading they were to be delivered and who was to pay the freight, and who was in fact the owner of the goods at the time of the loss complained of, is not the ordinary case where the consignee is the person entitled to bring the action, and I am of opinion that there is nothing here to shew a special contract on which the plaintiff can maintain an action.

I think the rule must be discharged.

O'CONNOR v. COMMERCIAL UNION ASSURANCE COMPANY.

A CONDITION in plaintiff's policy of insurance required the certificates of the two magistrates most contiguous to the fire to be delivered within fourteen days after loss, and provided that if the claim should not, for the space of three months after the occurrence of the fire, be in all respects verified in manner aforesaid, the assured should forfeit every right to payment or restitution, and time should be of the essence of the contract. A verdict was found for plaintiff in April, 1877, which was set aside after argument had in February, 1878, on the ground that the certificates of the nearest magistrates had not been produced. Plaintiff then produced certificates from the nearest magistrates.

Held, that this was no compliance with the condition, and plaintiff could not recover.

THIS cause was argued January 31st and February 1st, 1881, before DESBARRES, MCDONALD, JAMES and WEATHERBE, JJ. It was an action upon a policy of insurance on a mill, tried before DESBARRES, J., when a verdict was found for plaintiff by consent, which verdict was set aside, the certificate required by one of the clauses of the policy of two of nearest magistrates not having been given; 3 Russell & Chesley, 129. The plaintiff thereupon procured and handed in a certificate from the three nearest magistrates. The parties made a case for the Court, consisting of the minutes of evidence at the trial, and the further statement of fact as to the handing in of the certificates of the nearest magistrates after the judgment setting aside the previous verdict.

Henry. The proof was put in too late under the fourteenth section. But the want of the certificate was not the only objection to the plaintiff's recovery. There was a change in the occupation. The judgment of the full Court on the last argument, in 3 R. & C., 128, is an express decision on the point in regard to the change in the occupant, under the third and fifth conditions of the policy. There was a change in the possession and interest, and in the title too. A company may be very willing to insure property of A. B. in a building owned by C. D., but not if the building become the property of E. F. It makes no difference whether the change is in the ownership of the thing insured or of the building in which it is contained. At the time of the insurance the mill was occupied by Hughes, who was running it as his own. At the time of the loss, by a voluntary transfer it had passed to Dennison, and Austen and Tremaine. The same question arose in McLeod v. Citizens'

Ins. Co., 3 R. & C., 156. On the point as to the notice I will give Mason v. Harvey, 8 Exch., 819; Mann v. Western Ins. Co., 19 U. C. Q. B., 314.

Longley, (with whom was McCoy, Q. C.,) was called upon on the first point, as to notice. Cites Mann et al. v. Western Ins. Co., 19 U. C. Q. B., 314. The certificate of the magistrates need only be given within a reasonable time. In the case cited the words "as soon as possible" were construed to mean, under the circumstances. In that case papers which were first sent in were objected to, and a second set of papers was put in. That was also the case here. I do not mean to say that the company are not entitled to demand a proper certificate as a condition precedent to our recovery, but, having failed to call our attention to the irregularity in the certificate at the time it was sent in, they are precluded from subsequently making any objection as to the time. This was the principle on which the Canadian case went. There is no distinction in principle between the eleven months in that case and the two years and a half in this. We rectified the mistake as soon as we were made aware of it. (MCDONALD, J. -Is there anything to show that the underwriters knew that the certificate was not given by the nearest magistrate. They can't waive a thing unless they know it.) Cites Clarke on Ins., 236, as to waiver. (WEATHERBE, J.-Your argument only goes to show that there was a waiver of irregularities in the original proof.) A letter was written by the company objecting to the first proof. A second proof was then immediately put in, to which no specific objection was made. The answer was merely that the loss would not be paid. In the Canadian case the circumstances and the proper proof was allowed to be put in eleven months after. If the cause had not been reached, on the same principle the proof could have been put in three years after. (WEATHERBE, J.-I admit your proof has been put in as soon as possible," but the contracts are not the same. You have bound yourself to put in the proof within three months, possible or not.) I contend that after calling attention to irregularities in the first certificate they were equally bound to call attention to irregularities in the second if they intended to rely upon them; Clarke on Ins., 236. (Henry.-Under the 19th condition it is provided that